Tey v Optima Financial Group Pty Ltd - [2012] WASCA 193

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WASCA 193

CORAM: PULLIN JA
NEWNES JA

HEARD: 7 AUGUST 2012

DELIVERED : 10 OCTOBER 2012

FILE NO/S: CACV 7 of 2012
CACV 12 of 2012

BETWEEN: KOK YONG TEY
Appellant
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent

ON APPEAL FROM:
For File No              :  CACV 7 of 2012
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER GETHING
Citation  :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 3] [2012] WADC 3
File No  :APP 44 of 2009
For File No              :  CACV 12 of 2012
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :COMMISSIONER GETHING
Citation  :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WADC 19
File No  :APP 44 of 2009

Catchwords:

Practice and procedure - Appeal against dismissal of application for review of taxation of costs - Appeal against costs order on application for review - Application by respondent to strike out appeal as having no reasonable prospect of success - Effect of O 66 r 48 of the Rules of the Supreme Court 1971 (WA) -Appeal without merit

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 48

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr B W Ashdown

Solicitors:

Appellant: In person
Respondent: De Vita & Dixon

Case(s) referred to in judgment(s):

Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
Bendir v Anson [1936] 3 All ER 326
Brookvista Pty Ltd v Meloni [2009] WASCA 180
Dart v Singer [2010] QCA 185
House v The King (1936) 55 CLR 499
Lyon v Mercer (1823) 1 Sim & St 357; 57 ER 143
Mentors Ltd v Evans [1912] 3 KB 174
Mossensons (a firm) v Coastline Associates (Unreported, WASCA, Library No 970661B, 6 November 1996)
Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
Schweppes Limited v Archer (1934) 34 SR (NSW) 181
Tey v Optima Financial Group Pty Ltd [2010] WADC 98
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Tey v Optima Financial Group Pty Ltd [2011] HCASL 41
Tey v Optima Financial Group Pty Ltd [2012] WASCA 192
Tey v Optima Financial Group Pty Ltd [No 2] [2011] WADC 129
Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113

JUDGMENT OF THE COURT: On 19 January 2012, in the District Court, Commissioner Gething dismissed an application by the appellant for the review of a taxation of costs by a deputy registrar. His Honour ordered the appellant to pay the respondent's costs of the review. Subsequently, on 3 February 2012, the Commissioner fixed the costs of the review in the sum of $5,332.25.
The appellant has appealed to this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Tey v Optima Financial Group Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] WASCA 193
Decision Date: 10 OCTOBER 2012

CaseChat Overview and Summary

In Tey v Optima Financial Group Pty Ltd, the appellant sought to appeal against the dismissal of an application for the review of a taxation of costs and the subsequent costs order imposed on her by the Commissioner. The background to the case involves the appellant's engagement of the respondent to audit her business accounts, leading to a dispute over unpaid fees. The matter proceeded through the Magistrates Court, District Court, and Court of Appeal, with the appellant consistently losing on the substantive merits. The present appeal concerns the taxation of costs incurred during the appeal process.

The legal issues before the court were twofold: firstly, whether the appeal against the dismissal of the review application had any prospect of success; and secondly, whether the appeal against the costs order had any prospect of success. The court examined the grounds of appeal provided by the appellant and assessed whether any of them had a reasonable chance of altering the outcome of the earlier decisions.

The court found that the appellant's appeal against the dismissal of the review application was without merit. The appellant's objections to the taxation of costs were considered and rejected, and she was given the opportunity to seek judicial review, which she did. However, the court determined that none of the grounds of appeal had any prospect of success. Regarding the costs order, the court similarly found that the appeal lacked merit, particularly as it sought to reargue matters already decided. The appellant's complaints about the review process were deemed irrelevant to the present appeal.

The court dismissed both appeals, finding that they had no reasonable prospect of success and were therefore an unnecessary use of judicial resources. The respondent's application to strike out the appeals was granted, and the appellant was ordered to pay the respondent's costs of the appeals.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: On 19 January 2012, in the District Court, Commissioner Gething dismissed an application by the appellant for the review of a taxation of costs by a deputy registrar. His Honour ordered the appellant to pay the respondent's costs of the review. Subsequently, on 3 February 2012, the Commissioner fixed the costs of the review in the sum of $5,332.25. The appellant has appealed to this court against both the dismissal of the review application and the amount of the costs fixed by the Commissioner. The respondent in turn has applied to have both appeals dismissed, substantially on the basis that in each case none of the grounds of appeal has any prospect of success. At the cost of repeating to some extent what has been said more fully elsewhere (see, for instance, Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113), it is appropriate to describe briefly the background to the present appeals. The appellant engaged the respondent to audit the annual accounts of her business to meet certain statutory requirements. The respondent carried out the work but the appellant did not pay the fee of $550. The respondent commenced proceedings in the general jurisdiction of the Magistrates Court. The respondent obtained judgment after trial in the sum of $550 and allowable costs of $368.05. Neither party had legal representation. The appellant appealed to the District Court. The respondent applied under s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCP Act) for an order that the appeal be struck out on the grounds that the costs of the appeal were disproportionate to both the amount of the claim and the nature of the case and, alternatively, under s 43(4) of the MCCP Act on the basis that the grounds of appeal had no reasonable prospect of success. On 25 June 2010, Davis DCJ dismissed the appeal: Tey v Optima Financial Group Pty Ltd [2010] WADC 98. Her Honour found for the respondent on both grounds. An appeal by the appellant to this court was dismissed: Tey v Optima Financial Group Pty Ltd [2010] WASCA 219. The appellant's application for special leave to appeal to the High Court was also dismissed: Tey v Optima Financial Group Pty Ltd [2011] HCASL 41. On 11 July 2011, the respondent filed a bill of costs in respect of the appeal to the District Court. The bill of costs was for a total amount of $10,422.50. On 5 August 2011, Deputy Registrar Hewitt taxed the bill in an amount of $8,023.19, including the taxing fee. The deputy registrar deferred signing the certificate to allow the appellant to file objections under O 66 r 53 of the Rules of the Supreme Court 1971 (WA). The appellant's objections were filed on 18 August 2011. They were in the following terms:OBJECTION TO TAXATION OF COSTS HELD ON 5 AUGUST 2011(1)The Appellant objects to the Bill taxed on 5 August 2011 before Deputy Registrar Hewitt (refer to contents of transcript of proceedings on 5 August 2011). The Registrar allowed the Respondent to take advantage of the Appellant's situations. The Appellant was not prepared for taxation of Bill of Costs that day. And therefore, it could be said that the Appellant was prejudiced.(2)The taxation of the bill of costs lodged by the Respondent's Lawyers De Vita + Dixon Lawyers on 11 July 2011 should not have been listed for taxation on 5 August 2011 as such date was not consented by both parties, and taxation of the Bill of Costs should not have gone ahead.(3)An application fee $193.00 paid by the Respondent to strike out the appeal on the issue of a Chamber Summons (see page 44 of transcript of proceedings) was not included and reflected in the Respondent's Bill of Costs, therefore the Respondent's Bill of Costs did not show the true story of this case matter.OBJECTIONS OF ITEMISED BILL OF COSTS:

Ratio Decidendi

Legal Principle Established

This ground proceeds upon a misconception as to the process of review of a taxation of costs and must fail. The practice is that a taxing officer will not sign a certificate of taxation so soon as to deprive a party of the opportunity to lodge an objection to the taxation. A certificate which is signed so quickly as to deprive a party of that opportunity is liable to be set aside: Australian Coal & Shale Employees’ Federation v Commonwealth (624). No such issue arose in this case. The appellant was given time to lodge objections and did so. Those objections were considered and rejected by the taxing officer. It was then incumbent upon the taxing officer to sign the certificate. In fact, he did not do so until some months later, on 1 November 2011. The appellant had 14 days after the certificate was signed within which to seek review by a judge under O 66 r 55. She availed herself of that process. No question of prejudice to the appellant arises. In our view, none of the grounds of appeal have any prospect of success and this appeal should be dismissed. We turn then to the appeal against the costs order made by the Commissioner in respect of the review. The appellant relies on the following grounds of appeal:1.The learned Commissioner erred, as a matter of law in the exercise of his discretion by failing to accept that Judge Davis' order could only mean that only [sic] the costs of striking out the appeal were not recoverable. Therefore the appellant's application for review of taxation filed on 13 September 2011 should not be dismissed.2.That Judge Davis' order is not subject to interpretation. By costs of the appeal her Honour meant getting up costs at minimal costs. The Commissioner erred in the exercise of his discretion by not so finding.3.The learned Commissioner awarded to the respondent fixed costs for the review in the sum of $5332.25. This amount is excessive, subjective and unjust. His Honour erred in the exercise of his discretion by accepting that [the respondent's solicitor's] affidavit of 12 January 2012 on pages 49 and 50 satisfied him, a sum of $4684.25 [sic $4694.25] to be included in the fixed costs. The difference was $638.00.(a)The appellant was prejudiced.(b)Also this appeal should be put to a halt until the appellant's s 36 application filed on 26 March 2012 in the Supreme Court of Western Australia is heard and delivered. These grounds do not relate to the costs of the review but seek to argue again complaints about the review itself. They are irrelevant to this appeal. Moreover, they have been dealt with above. This ground is in three parts. The first part is, in effect, a contention that the Commissioner erred in the exercise of his discretion in fixing the respondent's costs of the review in the sum of $5,332.25. However, it is unclear whether the appellant's complaint concerns to some specific error relating to the affidavit of the respondent's solicitor or whether it is wider than that. Regrettably, the appellant's written submissions are, with respect, at the least obscure. Her oral submissions did not provide any greater assistance.